Daily Comment on News and Issues of Interest to Michigan Lawyers

July 2012

07/31/2012

SCOTUSBlog says that a petition asking the U.S. Supreme Court to allow Oklahoma voters to vote on a state constitutional amendment declaring the "personhood" of fetuses may present an opportunity for the court to take a new look at abortion rights:

Although the case is centered on citizens’ right to propose ballot measures, the fact that the state court in blocking Question 761 relied upon the continuing validity of the court’s decision in Planned Parenthood v. Casey in 1992 could put that precedent in play. And that may be precisely what the supporters of the idea that fetal life should be protected from inception ultimately want to happen.

Trick question. Although the legal profession has its fair share of brilliant thinkers, litigators, strategists, teachers, and theorists, we do not seek, nor do we find, "geniuses" in our ranks. Read this provocative piece in Salon on the astonishing self-destruction of superstar science writer Jonah Lehrer for reasons why we should be glad we don't anoint legal geniuses. But be prepared to think about the subcontext of the piece -- an impassioned argument for diversity.

The Judicial Tenure Commission (JTC) has recommended that this Court remove22d District Court Judge Sylvia A. James from office for judicial misconduct. Judge James (respondent) has filed a petition asking this Court to reject that recommendation. We affirm the JTC’s findings and its recommendation and conclude that it is necessary and appropriate to remove Judge James from office for the remainder of her term.The evidence establishes that respondent misappropriated public funds, some of which were intended for victims of crime in the city of Inkster. She inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees. She treated these funds, as the master phrased it, as her own “publicly funded private foundation.” In addition, she (1) denied people access to the court by instituting and enforcing an improper business-attire policy, (2) employed a family member in violation of court policy, and (3) made numerous misrepresentations of fact under oath during the investigation and hearing of this matter.

The cumulative effect of respondent’s misconduct, coupled with its duration, nature, and pervasiveness, convinces this Court that she is unfit for judicial office. Although some of her misconduct, considered in isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level that requires her removal from office.

In a concurrence, Justice Markman wrote:

Although I concur with the majority that Judge James’s misconduct warrantsremoval and the payment of restitution for the diversion of public funds into her “personal piggybank” and as part of her “publicly-funded private foundation,” I do not think that this sanction sufficiently addresses the harm done to the integrity of the judiciary. In light of this Court’s responsibility to ensure the integrity of our judicial system, both in appearance and in fact, and in light of the serious misconduct by Judge James that directly impugns the integrity of our “one court of justice” and because of her serious abuse of the public trust, financial and otherwise, I would impose a six-year conditional suspension in addition to the sanctions imposed by the majority.

The New York Times shares its stylebook for the Olympics, with such useful information such as "caldron" not "cauldron," what to hyphenate (pole vault (n.) pole-vault (v.) and pole-vaulter), and what to do with Chinese and Korean names. Personal favorite: "Podium is not a verb."

07/30/2012

But for the Olympics, it would have been hard for most anyone to miss news by and about Justice Scalia this past weekend. SCOTUSBlog has the round-up -- the Fox News interview with Justice Scalia; coverage of the interview from Fox News and the WSJ Washington Wire; coverage of the health care decision dissent in Bloomberg and the Washington Wire; a summary of his health care decision remarks in USA Today; and the justice discussing his new book on C-Span’s Q&A.

It is hard to believe, but Penn State had no General Counsel's office until 2010. Instead, it contracted out most of its legal work to McQuaide Blasko, a law firm in Centre County, Pennsylvania. That outside legal counsel had a serious conflict of interest in the case of Jerry Sandusky, because it was also legal counsel for Jerry Sandusky's Second Mile and sat on its Board.

When a General Counsel's office was established in 2010, it was led by Cynthia Baldwin, a former state Supreme Court justice. It had only two attorneys at University Park and two at Penn State Hershey. The university website does not make it easy to identify the attorneys in the GC's office, but the linked in account of one shows only some experience in corporate law practice and litigation groups at a Pittsburgh law firm and a clerkship for Justice Baldwin. The Freeh report notes, "Baldwin did not seek assistance or advice from an attorney experienced in criminal investigations or conducting internal investigations."

Having only two attorneys at University Park and two at Penn State Hershey meant that the office was severely understaffed and lacked the wide range of expertise necessary to provide competent advice. In addition, four attorneys is far too few for such a large organization with campuses throughout the state. Penn State's General Counsel is responsible for overseeing all legal affairs of the University, including the Milton S. Hershey Medical Center and College of Medicine located in Hershey, Pa., the main campus at University Park, 19 campuses across the Commonwealth, and the online World Campus. Not only is the office understaffed, it is unclear how many of the staff have experience working in the general counsel's office of a major university.

The ABA Journal convened a jury and came up with a roster of The Theater's 12 Greatest Courtroom Dramas. (No Michigan jurors, but a Michigan winner.) I've seen 11 of the 12 and don't dispute their power, but I may quibble about the order. See the list after the jump:

We told you a few weeks ago that the National Law Journal suggests times have never been better for getting into a great law school and negotiating a good scholarship. The Wall Street Journal made the same argument this weekend in "More Law Schools Haggle on Scholarships," noting that in the past 10 years, the amount of scholarship dollars awarded to law students has nearly tripled and that for the 2011-12 school year, law schools awarded over $1 billion in scholarships. Wish you'd heard about this before? The story also says that even some top tier law schools are still taking applications, long past their traditional deadline, for the 2012 class.

A letter from the lawyer who defends Jack Daniel's trademarks to the author of the satire Broken Piano for President, the book cover of which is said to bear a striking resemblance to the label for Jack Daniel’s Tennessee Whiskey, has gone viral. The Atlantic says it “may well go down as the most polite, encouraging and empathetic cease-and-desist letter ever to be sent in the history of lawyers and humanity.” Judge for yourself: